Omega Environmental, Inc. v. Gilbarco, Inc.

Opinion by Judge WRIGHT; Dissent by Judge PREGERSON. EUGENE A. WRIGHT, Circuit Judge. In this complex antitrust case we must decide, among other issues, whether the district court erred in submitting to the jury the plaintiffs’ Clayton Act § 3 exclusive dealing and other state law claims. I Background Manufacturers of petroleum dispensing equipment1 sell their products, both directly and through authorized distributors, to the owners of retail gasoline outlets, including major oil companies, independent business persons (“jobbers”), national and regional convenience store chains, and independent regional oil companies. Five manufacturersGilbarco, Dresser Wayne, Tokheim, Schlumberger, and Bennett-currently compete for these sales in the United States. Larger customers, such as the major oil companies and national convenience store chains, generally purchase their dispensers directly from the manufacturers through annually negotiated contracts. Major oil companies often negotiate prices for their affiliated jobbers, but the jobbers are not required to purchase their dispensers from their major oil company’s principal supplier. Smaller customers typically purchase their dispensers from the approximately 500 authorized dispenser distributors.2 Although these distributors can and do sell the dispensing equipment of each manufacturer, each is the authorized dispenser distributor of only one manufacturer. Dispenser manufacturers compete for sales at major oil companies and industry trade shows and during the annual negotiations of their contracts with the major oil companies. Customers purchasing either directly or through authorized distributors typically seek competitive bids before making their purchases. It is undisputed that competition among distributors is intense. Defendant Gilbarco, Inc. is the market leader in product innovation and improvement,3 and its products are widely recognized as among the best in the industry. It also leads in sales, capturing roughly 55% of the domestic market for dispensers in 1995. Approximately one-third of its dispenser sales are made directly to end users while the remaining two-thirds are through authorized distributors. These percentages vary greatly among dispenser manufacturers. Dresser Wayne for example, the second-leading dispenser manufacturer, sells over 70% of its dispensers directly to the major oil companies and jobbers. Gilbarco has some 120 authorized distributors operating under its standard form “Domestic Distributor Agreement.” The agreements have an initial term of one year and are thereafter expressly terminable by either party, without cause and without penalty, on 60 days notice. Plaintiff Omega Environmental, Inc. was organized in 1991. It introduced no manufacturing capacity to the industry, but instead proposed to develop a national service and distribution network by purchasing existing concerns. This network would provide “one-stop shopping” to consumers of petroleum dispensers and related equipment. Each Omega distributor would offer multiple product lines, and the network would engage in consolidated purchasing from manufacturers. To that end, Omega targeted for acquisition a number of existing distributors and servicers, including two authorized Gilbarco distributors, plaintiffs ATS-Omega (“ATS”) and Kelley-Omega (“Kelley”). — 1161 — In December 1993, in response to Omega’s introduction of a distribution strategy at odds with its own, Gilbarco had internal meetings and met separately with its Distributor Advisory Council and Omega representatives. In February 1994, Gilbarco notified each of its authorized distributors that it intended to “continue to do business with service station equipment distributors who [s]ell only the Gilbarco line of retail dispensers.” Accordingly, it notified Kelley, acquired by Omega in 1993, that its distributorship agreement would not be renewed. In April 1994, one month after Omega purchased ATS, Gilbarco gave ATS 60 days notice that it was terminating their agreement. This suit followed. Plaintiffs alleged three distinct antitrust claims under the Sherman and Clayton Acts and their state law counterparts. They claimed that Gilbarco and several distributors, including the Distributor Advisory Council chair, defendant Rochester Petroleum Equipment, Inc., had conspired to maintain resale prices for petroleum dispensing equipment and to allocate territories and customers in violation of § 1 of the Sherman Act and Wash. Rev. Code § 19.86.030. They also alleged that the defendants had conspired to monopolize, and attempted to monopolize, the market for the sale of petroleum dispensing equipment in violation of § 2 of the Sherman Act and Wash. Rev. Code § 19.86.040. In their final antitrust claim, plaintiffs contended that Gilbarco’s policy violated § 3 of the Clayton Act and Wash. Rev. Code § 19.86.050. In addition to their antitrust claims, plaintiffs asserted that Gilbarco engaged in unfair competition in violation of Wash. Rev. Code § 19.86.020, breached contractual obligations, made negligent misrepresentations, and tortiously interfered with business relations. The district court granted summary judgment to Gilbarco on the Sherman Act claims and their state-law counterparts. After the plaintiffs’ case-in-chief, the court dismissed two contract claims and ATS’s and Kelley’s tortious interference claims on Gilbarco’s motion for judgment as a matter of law. The jury returned a verdict against Gilbarco on each claim submitted for its decision: exclusive dealing, unfair competition, breach of contract, negligent misrepresentation and tortious interference. The district court determined that the damage awards on these claims were duplicative, and gave judgment against Gilbarco on the single claim which represented the largest award to each plaintiff. Aggregated, these awards totalled $9,000,000, which the court trebled. It denied plaintiffs’ request for injunctive relief. Gilbarco renewed its motion for judgment as a matter of law on each claim. The district court denied the motion in a one-sentence minute order. It awarded to the plaintiffs attorney’s fees and costs exceeding $1,000,-000. Gilbarco appeals from the denial of its motion for judgment as a matter of law on each claim, from the $27,000,000 judgment, and from the fee award. Omega cross appeals the summary judgment on its Sherman Act § 1 claim, the denial of injunctive relief, and the reduction of the damage award. II Standards of Review We review de novo the denial of a renewed motion for judgment as a matter of law, using the same standard as the district court. Judgment as a matter of law is appropriate when the evidence, construed in the light most favorable to the nonmoving party, permits only one reasonable conclusion, which is contrary to the jury’s verdict. Vollrath Co. v. Sammi Corp., 9 F.3d 1455, 1460 (9th Cir.1993). Applying this standard, we are mindful of the Supreme Court’s admonition that, in antitrust cases, “a reasonable jury is presumed to know and understand the law, the facts of the case, and the realities of the market.” Brooke Group Ltd. v. Brown & Williamson Tobacco Corp., 509 U.S. 209, 243, 113 S.Ct. 2578, 2598, 125 L.Ed.2d 168 (1993). We also review de novo the district court’s interpretation of state law, Huey v. Honeywell, Inc., 82 F.3d 327, 329 (9th Cir. 1996), and the application of that law to undisputed facts, Boone v. United States, 944 F.2d 1489, 1492 (9th Cir.1991). — 1162 — III Analysis A. Exclusive Dealing Section 3 of the Clayton Act provides: It shall be unlawful for any person ... to lease or make a sale or contract for sale of goods ... on the condition, agreement, or understanding that the lessee or purchaser thereof shall not use or deal in the goods ... of a competitor ... of the lessor or seller, where the effect ... may be to substantially lessen competition or tend to create a monopoly. 15 U.S.C. § 14. The main antitrust objection to exclusive dealing is its tendency to “foreclose” existing competitors or new entrants4 from competition in the covered portion of the relevant market during the term of the agreement. Roland Machinery Co. v. Dresser Industries, Inc., 749 F.2d 380, 393 (7th Cir.l984)(Posner, J.). There are, however, well-recognized economic benefits to exclusive dealing arrangements, including the enhancement of interbrand competition. See e.g. id. at 395; Joyce Beverages of N.Y. Inc. v. Royal Crown Cola Co., 555 F.Supp. 271, 277-78 (S.D.N.Y.1983). And, as then-Judge Breyer noted, in the analogous context of requirements contracts, “virtually every contract to buy ‘forecloses’ or ‘excludes’ alternative sellers from some portion of the market, namely the portion consisting of what was bought.” Barry Wright Corp. v. ITT Grinnell Corp., 724 F.2d 227, 236 (1st Cir.1983). We thus analyze challenges to exclusive dealing arrangements under the antitrust rule of reason. Turin City Sporiservice, Inc. v. Charles O. Finley & Co., Inc., 676 F.2d 1291, 1302 (9th Cir.1982); see Tampa Electric Co. v. Nashville Coal Co., 365 U.S. 320, 327, 81 S.Ct. 623, 627-28, 5 L.Ed.2d 580 (1961); Roland, 749 F.2d at 393. Only those arrangements whose “probable” effect is to “foreclose competition in a substantial share of the line of commerce affected” violate Section 3. Tampa Elec., 365 U.S. at 327, 81 S.Ct. at 627-28; Twin City, 676 F.2d at 1304 n. 9; see also Jefferson Parish Hospital District No. 2 v. Hyde, 466 U.S. 2, 45, 104 S.Ct. 1551, 1576, 80 L.Ed.2d 2 (1984)(0’Connor, J. coneurring)(“Exclusive dealing is an unreasonable restraint on trade only when a significant fraction of buyers or sellers are frozen out of a market by the exclusive deal.”). The parties agree that the plaintiffs have correctly defined the relevant market as the “the sale of retail gasoline dispensers from manufacturers in the United States.” Plaintiffs contend, however, that Gilbarco’s policy forecloses from competition 24% of the available distributors. The focus on this subset of the relevant market is misplaced: The foreclosure effect, if any, depends on the market share involved. The relevant market for this purpose includes the full range of selling opportunities reasonably open to rivals, namely, all the product and geographic sales they may readily compete for, using easily convertible plants and marketing organizations. 2A Phillip E. Areeda et al., Antitrust Law ¶ 570bl at 278 (1995); see also Tampa Elec., 365 U.S. at 330-33, 81 S.Ct. at 629-31. The foreclosed market, in purely quantitative terms, is more accurately described as the percentage of Gilbarco’s total market share sold through its authorized distributors. Seventy percent of Gilbarco’s total dispenser sales are through distributors, and it captured 55% of the total market in 1995. Construing this evidence in the plaintiffs’ favor, the jury could reasonably have concluded that Gilbarco’s policy foreclosed roughly 38% of the relevant market for sales. Although 38% appears significant, see e.g. Twin City, 676 F.2d at 1304 (holding that 24% foreclosure for an unreasonable length of time is substantial), we conclude that it “considerably overstates the size of the foreclosure and its likely anticompetitive effect for several reasons.” Barry Wright, 724 F.2d at 237. First, exclusive dealing arrangements imposed on distributors rather than end-users are generally less cause for anticompetitive concern. Ryk’o Mfg. Co. v. Eden Services, 823 F.2d 1215, 1235 (8th Cir. — 1163 — 1987)(“Where the exclusive dealing restraint operates at the distributor level, rather than at the consumer level, we require a higher standard of proof of ‘substantial foreclosure.’ ”). If competitors can reach the ultimate consumers of the product by employing existing or potential alternative channels of distribution, it is unclear whether such restrictions foreclose from competition any part of the relevant market. See generally ABA Antitrust Section, Monograph No. 8, Vertical Restrictions Upon Buyers Limiting Purchases of Goods from Others, 92 (1982); Richard M. Steuer, Exclusive Dealing in Distribution, 69 Cornell L.Rev. 101, 118-124 (1983); Herbert Hovenkamp, Federal Antitrust Policy § 10.8 at 391 (1994) (foreclosure of even “a large percentage of one mode of distribution will have little anticompetitive effect if another mode is available.”) The record contains undisputed evidence that direct sales to end-users are an alternative channel of distribution in this market. Gilbarco, Dresser Wayne, Tokheim, Schlumberger and Bennett respectively make 30%, 73%, 35%, 15%, and 15% of their sales without the aid of distributors. The plaintiffs’ own expert testified that these direct purchases fall within the relevant market. The record also contains undisputed evidence of potential alternative sources of distribution. Existing companies, such as the service contractors that regularly sell and service petroleum dispensing equipment, can and do become authorized dispenser distributors. ATS, for example, was an ASC before becoming an authorized Gilbarco distributor, and neither it nor Kelley had been distributors prior to becoming Gilbarco distributors. Their own experiences refute their theory.5 Contrary to plaintiffs’ contention, these alternatives are relevant to assessing market foreclosure. See 2A Areeda ¶ 570bl (foreclosure calculation “includes the full range of selling opportunities reasonably open to rivals, namely, all the product and geographic sales they may readily ebmpete for, using easily convertible plants and marketing organizations”); cf. Thurman Industries, Inc. v. Pay ‘N Pak Stores, Inc., 875 F.2d 1369, 1374 (9th Cir.1989) (relevant market includes “all sellers or producers who have actual or potential ability to deprive each other of significant levels of business”); Oltz v. St. Peter’s Community Hospital, 861 F.2d 1440, 1446 (9th Cir.1988) (relevant product market includes things that “enjoy reasonable interchangeability of use and cross-elasticity of demand.”). These alternatives eliminate substantially any foreclosure effect Gilbarco’s policy might have. Omega nonetheless complains that they are inadequate substitutes for the existing distributors: “[Ajlmost all [of] the 500 existing distributors-who have, proven finances, abilities and customer relationships-are restricted by exclusive dealing.” The short answer is that the antitrust laws were not designed to equip the plaintiffs’ hypothetical competitor with Gilbarco’s legitimate competitive advantage. General Business Systems v. North American Philips Corp., 699 F.2d 965, 979 (9th Cir.1983)(“[A] defendant, having succeeded in legitimately controlling ‘the best, most efficient and cheapest source of supply,’ ... does not have to share ‘the fruits of its superior acumen and industry.’ ”)(eiting Determined Productions, Inc. v. R. Dakin & Co., 514 F.Supp. 645, 648 (N.D.Cal.1979)); Seagood Trading Corp. v. Jerrico, Inc., 924 F.2d 1555, 1573 (11th Cir.1991)(no anticompetitive impact where plaintiffs not foreclosed from every alternative). Competitors are free to sell directly, to develop alternative distributors, or to compete for the services of the existing distributors. Antitrust laws require no more. Second, the short duration and easy terminability6 of these agreements negate substantially their potential to foreclose competition. See Roland, 749 F.2d at 394-95 (one-year contracts presumptively legal); Paddock Publications, Inc. v. Chicago Tribune Co., 103 F.3d 42, 47 (7th Cir.)(Easterbrook, J.)(same), cert. denied, — U.S. -, 117 — 1164 — S.Ct. 2435, 138 L.Ed.2d 196 (1997); Barry Wright, 724 F.2d at 237 (two-year contracts reasonable); U.S. Healthcare, Inc. v. Healthsource, Inc., 986 F.2d 589, 596 (1st Cir.1993)(termination on 30 days notice normally a de minimis constraint); In re Beltone Electronics Corp., 100 F.T.C. 68, 210 (1982)(termination on thirty days notice an “escape valve” diluting the limitation on access to distributors). Because all of Gilbarco’s distributors are available within one year, and most (90% according to the plaintiffs) are available on 60 days notice, a competing manufacturer need only offer a better product or a better deal to acquire their services. See 2A Areeda ¶ 420c at 60 (“Antitrust ... regards impediments as ‘barriers’ if they deter entry for a sufficiently long time.”); id. ¶ 421f at 68 (“[A]ll customers might contract to buy exclusively from incumbents and yet allow effective entry if 20 percent of the contracts expire monthly (or even annually).”). Plaintiffs’ expert opined that no distributor would abandon the Gilbarco line for an untested product with no reputation. We agree with the unremarkable proposition that a competitor with a proven product and strong reputation is likely to enjoy success in the marketplace, but reject the notion that this is anticompetitive. It is the essence of competition. See American Professional Testing Service, Inc. v. Harcourt Brace Jovanovick Legal and Professional Publications, Inc., 108 F.3d 1147, 1154 (9th Cir.1997)(“[R]eputation alone does not constitute a sufficient entry barrier in this Circuit.”); United States v. Syufy Enterprises, 903 F.2d 659, 669 (9th Cir.1990)(“We fail to see how the existence of good will achieved through effective service is an impediment to, rather than the natural result of, competition.”). Nor did plaintiffs produce credible evidence to support their contention that Gilbarco’s policy actually deterred entry into this market.7 The actual entry and expansion of Schlumberger in 1991, through the purchase of a small dispenser manufacturer, Southwest, demonstrate the contrary. The record shows that Schlumberger has built a substantial distribution network since it entered the market. Plaintiffs’ witnesses testified that when Schlumberger bought Southwest, it “didn’t have much distribution,” and was “the joke of the industry,” but that by trial Schlumberger had “something over ... 100 distributors” (which plaintiffs now count as among those with “proven finances, abilities and customer relationships”). And, although the parties contest the extent of the increase, it is undisputed that Schlumberger’s market share has increased since its entry by at least one third (from approximately 6% to 8%), while industry output in the retail dispenser market has expanded substantially. This undisputed evidence precludes a finding that exclusive dealing is an entry barrier of any significance. Syufy Enterprises, 903 F.2d at 665. Our discussion of the mitigating effect of the contracts’ short duration and easy terminability also disposes of plaintiffs’ contention that the agreements harm competition by facilitating tacit price coordination among dispenser manufacturers. They argue, essentially, that exclusive dealing limits the ability of distributors to extract lower- prices from manufacturers by forcing the manufacturers to bid against each other. If the policy facilitates collusion by limiting the distributors’ ability to obtain better prices, it does so in most cases for no more than 60 days. See Hovenkamp § 10.8b at 384-85 (Although “[ejxclusive dealing may facilitate collusion by denying buyers an opportunity to force sellers to bid against each other,” if the “contracts must be re-bid frequently, most of the benefits of exclusive dealing will be retained, but the competitive threat will be greatly diminished.”). Nor are we persuaded that a jury could reasonably infer probable injury to competition even in this highly concentrated market where the undisputed evidence shows increasing output, decreasing prices, and significantly fluctuating market shares among — 1165 — the major manufacturers. Cf. Brooke Group, 509 U.S. at 237, 113 S.Ct. at 2595 (holding that, under Robinson-Patman Act, jury may not infer conscious parallelism or supraeompetitive pricing even in highly concentrated industry where output is expanding and, prices are increasing). We conclude that, even construed in the light most favorable to Omega, the evidence presented did not support the jury’s verdict. The district court erred by denying Gilbarco’s motion for judgment as a matter of law on the Clayton Act claim.8 B. State Law Claims 1. Breach of contract In the only contract claim submitted for its decision, the jury found that Gilbarco had breached ¶ 8(a) of the agreements, which requires compliance with “all applicable laws,” by enforcing the exclusive dealing policy allegedly in violation of N.C.Gen.Stat. § T5 — 5(b)(2).9 Gilbarco contends that it was entitled to judgment as a matter of law because North Carolina law is not “applicable” to the enforcement of Gilbarco’s policy outside of North Carolina and, even if it is, Gilbarco did not violate the statute. Because we conclude that plaintiffs failed to demonstrate that Gilbarco violated the statute, we need not examine its extraterritorial reach. Exclusive arrangements violate this statute only when they absolutely prohibit dealing in competitive goods. McDaniel v. Greensboro News Co., 1984-1 Trade Cas. (CCH) ¶ 65,792 at 67,287 (M.D.N.C.1983)(citing Arey v. Lemons, 232 N.C. 531, 61 S:E.2d 596, 600 (1950)); Baynard v. Service Distributing Co. Inc., 78 N.C.App. 796, 338 S.E.2d 622, 623 (1986)(“Plaintiff was not allowed to and did not buy gasoline from any other source.”); 14 Julian O. von Kalinowski, Antitrust Laws and Trade Regulation § 165.01[3] (1996). Here, undisputed evidence shows that the plaintiff distributors could and did sell the dispensers of competing manufacturers. The policy prohibited them only from becoming authorized distributors of a competing line of dispensers. Because the policy is not an absolute prohibition on dealing in competitive goods, but only a restriction on how plaintiffs may deal in those goods, as a matter of law, it does not violate § 75-5(b)(2). 2. Negligent misrepresentation ATS and Kelley argued that, notwithstanding the short-term, expressly terminable agreements, Gilbarco induced them into making capital investments, hiring more employees, and buying additional inventory by stating that they had long-term “partnering” relationships based on mutual trust. Washington follows the Restatement (Second) of Torts § 552 (1977), which provides: One who, in the course of his business, profession or employment ... supplies false information for the guidance of others in their business transactions, is subject to liability for pecuniary loss caused to them by their justifiable reliance upon the information, if he fails to exercise reasonable care or competence in obtaining or communicating such information. Havens v. C & D Plastics, Inc., 124 Wash.2d 158, 876 P.2d 435, 447 (1994). “The proof must be clear, cogent, and convincing.” Id. (citation omitted). Soon after the plaintiffs signed their agreements with Gilbarco, they received welcoming letters to the “Gilbarco Team” and saying that Gilbarco looked forward to their “partnership.” 10 Two Gilbarco executives testi — 1166 — fied that it generally looked for and valued long-term “partnership-type” relationships, and one testified that “partnership” was a common theme. These statements cannot establish negligent misrepresentation under Washington law. In Havens, the plaintiff asserted a claim based on similar statements made by the defendant during employment negotiations. The Washington Supreme Court, affirming a directed verdict for the defendant, said: Defendants stated that they were looking forward to a long and prosperous future together, and Plaintiff testified that he told Defendants that he expected to remain at Northwest Composites until he retired.... [S]ueh statements by defendants are consistent with the general expectation present in any such negotiation: the employer was hoping for and expecting a long-term, mutually satisfactory relationship. 876 P.2d at 444. Such statements, the court held, “cannot establish a promise on which to base a negligent misrepresentation claim.” Id. at 447. We conclude that Havens requires reversal on the negligent misrepresentation claim. 3. Tortious interference Omega argued, and the jury found, that by terminating ATS and Kelley, Gilbarco tortiously interfered with Omega’s attempted acquisition of three Gilbarco distributors. In Washington, the elements of tortious interference are: (1) the existence of a valid contractual relationship or business expectancy; (2) knowledge of the relationship or expectancy on the part of the interferor; (3) intentional interference inducing or causing a breach or termination of the relationship or expectancy; and (4) resultant damage. Pleas v. City of Seattle, 112 Wash.2d 794, 774 P.2d 1158, 1161 (1989)(en banc). “The third element, intent, denotes purposefully improper interference.” Birkenwald Distrib. Co. v. Heublein, Inc., 55 Wash.App. 1, 776 P.2d 721, 726 (1989)(em-phasis supplied). The plaintiff must prove that the defendant either pursued “an improper objective of harming the plaintiff’ or used “wrongful means” that caused injury in fact. Id. 776 P.2d at 727 (quoting Pleas, 774 P.2d at 1163). “Asserting one’s rights to maximize economic interests does not create an inference of ill will or improper purpose.” Id. Undisputed evidence shows that Gilbarco neither pursued an improper objective nor used wrongful means. Gilbarco, rightly or wrongly, perceived that Omega’s acquisition of its distributors conflicted with Gilbarco’s economic interests.11 Under Washington law, it clearly had the right to decline to do business with the purchaser of its distributors. Id. To that end, it exercised its express contractual right to cancel its distribution agreement with ATS and Kelley after they were acquired by Omega. IV Plaintiffs’ Cross Appeal Plaintiffs cross appeal the summary judgment on their Sherman Act § 1 claims.12 We review de novo. Bagdadi v. Nazar, 84 F.3d 1194, 1197 (9th Cir.1996). In granting summary judgment on the plaintiffs’ claim that the defendants engaged in a concerted refusal to deal, the district court concluded that plaintiffs (1) failed to produce evidence of concerted action sufficient to withstand summary judgment, — 1167 — and (2) failed either to allege facts sufficient to warrant application of the per se rule or to produce evidence to withstand summary judgment under the rule of reason. In a lone paragraph in their 55-page opening brief, plaintiffs contend that they proved that Rochester Petroleum and Gilbarco agreed to refuse to deal with Omega.13 Only in then-reply brief do they address the reasonableness of the alleged restraint. They contend that they could properly omit this contention from their opening brief “because the district court erred in concluding that the concerted action alleged here was not a per se violation.” We firmly reject the startling proposition that these plaintiffs were entitled to assume in their opening brief, unknown to this court and the defendants, that an essential element of the district court’s holding was incorrect. Plaintiffs could argue that the court erred, but they neglected to do so. We decline to address an argument raised for the first time in the reply brief. See Cross v. State of Washington, 911 F.2d 341, 345 (9th Cir.1990). Because plaintiffs have failed to present a sufficient basis to reverse the summary judgment, we affirm. No. 96-35153 REVERSED, VACATED AND REMANDED. No. 96-35172 AFFIRMED. No. 96-35594 VACATED. Footnotes [1] "Petroleum dispensing equipment” includes dozens of products, from the canopies that protect motorists from the rain, to the vapor recovery systems that capture escaping fumes.. Only the retail dispensers are here at issue. [2] Another 500-600 companies sell petroleum dispensing equipment other than dispensers. Some of these are appointed "authorized service contractors” ("ASCs”). They provide warranty work and install and repair dispensing equipment, and occasionally become authorized distributors. Plaintiff ATS-Kelley was an ASC before becoming an authorized Gilbarco distributor. [3] Gilbarco was the first manufacturer to introduce "multi-product dispensers” which allow customers to obtain different grades of fuel from the same dispenser. [4] Plaintiffs cast their argument in terms of "entry barriers," while Gilbarco discusses "foreclosure from the relevant market." Aside from the slatus of the allegedly affected competitors, i.e., incumbent firms or new entrants, we perceive little meaningful difference. [5] The ASCs do not operate under exclusive arrangements, which renders them even more accessible to competitors. [6] Paragraph 11(a) of Gilbarco's Domestic Distributor Agreement provides: This Agreement shall have an initial term of one (1) year from the date first written above and continue thereafter until terminated. Either party shall have the option to terminate this Agreement, with or without cause, at the end of such initial term or at anytime thereafter upon sixty (60) days prior written notice. [7] Plaintiffs contend that Koppens and Tatsuno, two foreign dispenser'manufacturers, were deterred by exclusive dealing, but cite no credible supporting evidence. The testimony of Roy Sutton, president of Goode-Omega, that Koppens’ entry failed due to a lack of distribution is insuffident lor two reasons. First, it was admitted speculation, which the jury was not entitled to credit. Second, even if the jury were entitled to rely on his testimony, it is insufficient to establish that exclusive dealing caused the failed distribution. [8] The Washington exclusive dealing statute. Wash. Rev. Code § 19.86.050, contains language substantially similar to the Clayton Act, and the plaintiffs’ unfair competition claim under Wash. Rev. Code § 19.86.020 is premised on exclusive dealing. Because construction of these provisions is to be "guided by final decisions of the federal courts ... interpreting the various federal statutes dealing with the same or similar matters,” Wash. Rev. Code § 19.86.920, our conclusion with regard to the Clayton Act claim disposes of these claims. [9] The statute renders it "unlawful for any person ... to [sell], or to have any contract ... [t]o sell any goods in this State upon condition that the purchaser thereof shall not deal in the goods of a competitor.” The statute was repealed "to ensure” that North Carolina’s antitrust laws are "consistent with federal antitrust laws.” 1995 N.C. Sess. Laws 550. [10] John Reynolds testified that while he was negotiating for his distributorship, Gilbarco's district manager told him that he "was looking for a long-term distributor. As their agreement or their letter says, a partnership.” [11] Omega cites to the testimony of Walter Gavin, sales manager of Gilbarco North America, in support of its argument. We believe that it succinctly demonstrates why Omega’s claim fails as a matter of law: A: The policy had to do with dealing with competitors that were owned by competitors or dealing with companies that had multi brands of equipment. It so happened that Omega was a company that fit that description. [ ] We would have made the same decision if it were some other company rather than Omega.... Q: And you knew it would interfere with Omega’s ... ability to acquire other Gilbarco distributors, correct? A: Well, yeah, I guess it would do that. But I'm not interested in what is good for Omega. I’m interested in what is good for Gilbarco. And it’s clear to me that dealing with Omega is not good for Gilbarco. Good luck, go out and compete. [12] Our conclusion in the main appeal obviates the need to address plaintiffs’ other contentions. [13] Plaintiffs also contend that they proved that Rochester and Gilbarco agreed to the exclusive dealing policy in restraint of trade. Our conclusion that Gilbarco’s distributor policy did not violate the Clayton Act disposes of this contenlion. If an exclusive dealing arrangement "does not fall within the broader proscription of § 3 of the Clayton Act[,] it follows that it is not forbidden by [§§ 1 and 2 of the Sherman Act].” Tampa Electric, 365 U.S. at 335, 81 S.Ct. at 632.